Giles v. Horner
| Decision Date | 30 October 1914 |
| Docket Number | No. 17674.,17674. |
| Citation | 149 N.W. 333,97 Neb. 162 |
| Parties | D. S. GILES & SON v. HORNER. |
| Court | Nebraska Supreme Court |
Ordinarily, where a vendee has an opportunity for the inspection of personal property, representations by the vendor as to the value of the same are regarded as mere expressions of opinion, and afford no basis for an action of fraud and deceit; but where such representations are based on special knowledge of the vendor, which he obtained or pretended to have obtained by invoicing the property, and are believed by the vendee, and acted upon by him to his injury, they amount to actionable fraud. McKibbin v. Day, 71 Neb. 280, 98 N. W. 845.
Where the plaintiffs sued the defendant for damages, and the court instructed the jury as to the amount of proof necessary to establish fraud: -- held, that the instruction is erroneous, because it requires more than a preponderance of the evidence to establish fraud.
Where the defendant set up fraudulent representations upon the part of the plaintiffs, who were seeking to recover damages in an action for an alleged breach of contract, and the court instructed the jury, “You are instructed that if you find from the evidence that the defendant in this action had an opportunity to examine the stock of hardware, and that he was well acquainted with the same, having been in and about said stock every day and a number of times during the day, and that it was so located as to be convenient for him to observe the same, and that he could easily have ascertained the value of said stock, then and in that case you are instructed that it would not constitute any fraudulent representations in behalf of the plaintiffs, if they had made statements relative to the value of the said stock, and under such statements relative to the value of said stock, and under such circumstances it will be your duty to find for the plaintiffs and against the defendant,” held, that the instruction was misleading and prejudicial, because it took from the jury the consideration of whether the plaintiffs represented to the defendant that they had made an invoice of the stock of hardware, and by such representations induced the defendant to trade properties with the plaintiffs, when otherwise he might not have done so.
Appeal from District Court, Lincoln County; Grimes, Judge.
Action by D. S. Giles & Son against William Horner. Judgment for plaintiffs, and defendant appeals. Reversed.Wilcox & Halligan, of North Platte, and James G. Mothersead, of Scotts Bluff, for appellant.
J. W. James, of Hastings, for appellees.
The defendant, William Horner, appeals from a judgment of the district court of Lincoln county rendered against him and in favor of the plaintiffs, D. S. Giles & Son, in the sum of $625.44. The defendant in his brief alleges that the plaintiffs, who were partners, agreed in writing with the defendant to transfer to the defendant their stock of hardware at Wallace, Neb., in exchange for nine head of horses and colts, a piano, and a saddle and bridle, all to be furnished by the defendant and delivered to the plaintiffs, and in addition the defendant agreed with the plaintiffs to pay $660, bills against the business of the plaintiffs for goods sold and delivered to them. The defendant took possession of the stock of hardware, but he refused to take up the bills against the business, and claims that when the plaintiffs made the agreement with him they fraudulently represented the stock of hardware to be of greater value than it actually was; that the defendant and his wife, after the defendant got possession, took an invoice of the stock of goods, and found it to inventory only $1,180; that Giles, in the presence and hearing of Horner, stated that he had inventoried the stock of goods the night before the trade was made, and that it inventoried about $2,200, not including some wire and other things in the implement shed; and that if these things were counted the inventory would amount to about $2,300. The plaintiffs deny making any representations concerning the amount and value of the goods in the store, but say that the night before the trade was made that an estimate was made of what the stock was on hand. After the defendant, Horner, took possession of the store and found, as he claims, that the goods inventoried less than he understood their value to be, he refused to pay the outstanding bills against the business, and he so notified the plaintiffs. There was a bill of $200 for woven wire. There was some dispute about the bargain concerning the woven wire, but it is undisputed that the defendant paid for it. If the plaintiffs represented that the stock would inventory $2,300, it would leave the defendant damaged in the sum of $1,120, less a remainder of $460 yet to be paid on the bills against the defendant, after taking out the item of $200 paid for the woven wire. In the answer of the defendant it is alleged that the plaintiff had just taken an inventory of the stock, and that he knew that the inventory then taken amounted to $1,300, and no more, and that, when the plaintiffs made their representations to the defendant that the stock was of the value of $2,300, they knew said representations were false, and that the inventory only amounted to $1,300; that the defendant believed the representations of the plaintiffs that the stock of goods was of the value of over $2,200, and, relying upon the truth of said representations, signed the agreement, which he otherwise would not have done. In the reply the plaintiffs deny that they represented the stock of goods to be of the value of $2,300, deny that they ever stated that they would guarantee the stock to be of the value of $2,300, and deny that they ever represented that an inventory of the stock had been taken. It is further alleged in the reply that the plaintiffs were about the store every business day during many months, and knew the condition of the stock, and knew its value, and that the plaintiffs were also familiar with the trade.
[1][2] The first error alleged is the giving of instruction No. 9 which is as follows:
It is contended by defendant that:
“Fraud is but one of the elements of a civil action, and as such it is established by a preponderance of the evidence.”
In Patrick v. Leach, 8 Neb. 530, 1 N. W. 853, the court was requested to instruct the jury that they--
This instruction was refused, and the plaintiff excepted. This court held that it was calculated to mislead, and that it was properly refused. This court said:
“But the degree of proof required in an action for damages is merely a clear preponderance of the testimony establishing the fraud.”
In Kline v. Baker, 106 Mass. 61, the syllabus states the point as follows:
“Fraud is never presumed, but must be clearly proved, in order to entitle a party to relief on the ground that it has been practiced on him.” Davidson v. Crosby, 49 Neb. 60, 68 N. W. 338.
“Where fraudulent representations are relied on as a defense to an action, the same must be proven by a clear preponderance of the evidence.” Ish v. Finlay, 34 Neb. 419...
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